Ira Haywood appeals his convictions for robbery under Virgin Islands law andfor several federal charges arising out of that robbery. For the reasons thatfollow, we will affirm his robbery conviction and his convictions for thefederal crimes of interference with commerce by robbery and possession of afirearm during a crime of violence. However, we will reverse his conviction forpossession of a firearm with an obliterated serial number and remand for a newtrial. We will also reverse his conviction for possession of a firearm within1000 feet of a school but remand with a direction to enter a judgment ofacquittal on that charge.

I. FACTS2

Viewed in the light most favorable to the government, the trial evidenceshowed that on December 28, 1999, at approximately 8:00 p.m., America's Bar

and Poolroom, located in St. Thomas, United States Virgin Islands, was robbed.The owner, America Santiago, and a customer, Carmen Rodriquez, were in thebar at the time. Santiago testified that two masked men entered the bar carryingfirearms. Santiago described one firearm as very big and one as smaller. Shealso described one robber as being "short and a little strong," and the other as"tall, but a little darker." She testified that the men demanded money and fledwith approximately $40 to $60 in bills and approximately $10 in coins.13

Rodriquez testified that she saw two masked men come into the bar anddemand money. The men entered with two guns, a big one and a small one. Shesaid she was scared and threw $15 at the masked robbers.

Duke Charles, a cab driver who lives next door, approximately fifty feet fromthe bar, saw two men standing outside the bar at approximately 8:00 p.m. onthe night of the robbery. One man pulled a small black gun from his waist, andthe two men then entered the bar. Charles testified that the two men wore whiteT-shirts and were not wearing masks when he saw them enter the bar. Heimmediately called the police on his cell phone, then ran up stairs to the roof ofthe building. He testified that from the roof, he heard voices saying, "This is ahold-up. Give me the money." Charles also testified that he saw the men leavethe bar and walk up the street towards the Tower Apartments. Shortlythereafter, Charles observed a green car come down the street carrying thesame two men that he had observed entering and leaving the bar. Charles wasin constant contact with the Virgin Islands Police Department from the time ofhis initial call until he saw the police approaching. He saw the green car withthe two men inside stop at a stop light before making a left turn and heading inan easterly direction. Charles conveyed this information to the police andwatched as the police chased the green car with the two men inside. However,Charles was unable to identify the two robbers in court.

Virgin Islands Police Officer Alphonso Boyce testified that he and OfficerConrad Gilkes heard the radio transmission regarding a robbery in progress andproceeded to the area. Boyce also heard the subsequent transmission regardingthe direction of the green car. He then saw the car and gave chase.

The green car eventually crashed into a pole in the area of the Enid Bea PublicLibrary. Ira Haywood, the driver, and Kevin White, the passenger, wereordered out of the car. When Haywood got out, Boyce saw part of a gun fallfrom Haywood's waist. A search of the car disclosed the bottom portion of thefirearm, a shotgun, ammunition, a ski mask, gloves, tools and numerous coins.Sandra Koch, a Federal Bureau of Investigation hair and fiber expert, latermatched hair fiber samples from Haywood with hair fiber found in the ski mask

recovered from the car.

7

Virgin Islands Police Detective David Monoson found a shotgun between theseats of the car Haywood was driving. A firearm frame and magazine were alsofound under the driver's seat. Monoson testified that $15 was found on the dashboard of the car, $27 was removed from blue pants on the pavement outside thecar and coins were found on the driver's side of the car. Monoson furthertestified that the serial numbers from the shotgun and handgun had beenobliterated, and that the handgun had been manufactured in California and theshotgun had been manufactured in Connecticut.

Virgin Islands Police Detective Warrington Tyson later measured the distancefrom America's Bar to the Ulla Muller Elementary School. That distance was421 feet, 4 inches. Tyson testified that he took the measurement from the bar tothe entrance gate of the school.

On March 2, 2002, Haywood and White were charged in a ten count

superseding indictment with the following violations: Count One charged bothHaywood and White with interference with commerce, in violation of 18 U.S.C. 1951 and 2; Count Two charged Haywood with possession of a firearmduring the commission of a crime of violence, in violation of 18 U.S.C. 924(c)(1) and 2; Count Three charged White with possession of a short barreledshotgun during (and in relation to) a crime of violence, in violation of 18 U.S.C. 924(c)(1) and 2; Count Four charged both with robbery in the first degree, inviolation of 14 V.I.C. 1862(2) and 11; Count Five charged Haywood withpossession of a firearm with an obliterated serial number, in violation of 18U.S.C. 922(k) and 924(a)(1)(B); Count Six charged White with possessionof a shotgun during (and in relation to) a crime of violence, in violation of 14V.I.C. 2253(a); Count Seven charged both with possession of a firearm withina thousand feet of a school, in violation of 18 U.S.C. 922(q)(2)(A) and 2.Counts Eight, Nine and Ten charged Haywood with separate offenses occurringbefore the robbery of the bar. Those counts were severed and subsequentlydismissed without prejudice.

10

Virgin Islands Police Detective Darren Foy testified that the bar is a businessestablished in the Virgin Islands selling liquor and beer as well as non alcoholicbeverages. He also testified that the products sold at the bar, specifically,Heineken beer and Miller beer, come from mainland United States.

11

Haywood and White testified in their own defense, and both deniedparticipating in the robbery. Haywood claimed that he did not stop the car he

was driving when chased by police because he had marijuana and was afraidthat he would be arrested on drug charges.12

The jury found Haywood and White guilty as charged. Haywood was sentencedto a total period of imprisonment of 125 months, and then filed this appeal.2

II. DISCUSSION13

Haywood makes a number of arguments in his appeal. Each is considered

separately below.A. Insufficient Evidence of Robbery.3

14

Haywood argues that all of his convictions, on Counts One, Two, Five andSeven, must be reversed because there was insufficient evidence that he robbedthe bar. He begins by noting that neither Santiago nor Rodriquez could identifyhim as one of the robbers. He then argues that the only evidence connectinghim to the robbery was Charles's testimony that the car carrying the robberswas the same car that Charles told the police to follow, and the police officers'testimony that the car they followed at the start of the chase was the same carthat crashed into the library.

15

Accordingly, Haywood claims that the only established facts are that the barwas robbed and that he was driving a green car that crashed into the library. Hecontends that all of the other evidence was circumstantial and lacked a logicaland convincing connection to the established facts.

16

In support of his claim of insufficient evidence, Haywood notes that Charles

testified that he saw only one small gun, which was removed from thewaistband of one of the men right before they entered the bar. Haywood claimsthat since Charles could see one of the men enter the bar with a small gun, it isinconceivable that he would not also have seen the shotgun used by the otherman. Yet, Charles never testified about the other man carrying a shotgun.Moreover, Charles testified that both men were unmasked before they enteredthe bar, but Santiago and Rodriquez testified that the robbers were maskedwhen they entered the bar. Further, while Charles testified that the robberswore white T-shirts, neither Santiago nor Rodriquez gave a description of theclothes the robbers were wearing. In addition, Officer Boyce testified that thechange found at the scene of the arrest was in quarters, nickels and dimes,while Santiago testified that the $10 in change she gave to the robbers was onlyin quarters. In addition, Boyce testified that the car that he followed was blue,

but Charles testified that the car he told the police to follow was green. Finally,Haywood argues that Boyce testified that the slide of a gun fell out ofHaywood's waistband when Haywood got out of the car. However, DetectiveMonoson testified that he was told that the slide was thrown out of the carduring the pursuit. In Haywood's view, the lack of direct evidence linking himto the robbery together with the inconsistent circumstantial evidencedemonstrates that there was insufficient evidence to sustain his conviction forrobbery. Therefore, all convictions must be reversed. We disagree. There wasmore than sufficient evidence to sustain Haywood's robbery conviction.17

The fact that neither Santiago nor Rodriguez could identify Haywood as one ofthe robbers is unremarkable given that both women testified that the men whorobbed the bar were masked. As noted above, the evidence showed that twomasked men, each carrying a firearm, robbed the bar. One firearm was smallerthan the other. One man was short and strong and the other was taller but alittle darker. Testimony allowed this jury to reasonably conclude beyond areasonable doubt that Haywood was the shorter of the two men and that theshorter man had the smaller firearm.

18

Charles called the police on his cell phone while he was still observing the twomen he saw outside of the bar. He was still watching as they went into the barwith guns. He then ran up to the top of his building where he said he could seethe entire area. He testified that he heard someone say "Give me money. This isa holdup." Charles watched the men as they left the bar and made a left turninto some condominiums. He then saw them coming down the street full speedin a green car. They stopped at a stoplight because there was another car infront of them, and then turned left. Charles then saw the police car and toldthem that the robbers were making a left turn. He continued watching as thepolice started chasing the car with the two robbers in it.

19

Boyce's testimony establishes that the car he stopped was the same one thatCharles saw. Boyce told the occupants to get out of the car and Haywood, thedriver, did as instructed. When he got out, the slide for the top of a gun droppedto the ground from inside Haywood's waistband. The car was searched and thebottom half of the gun that went with the slide was recovered, as well as a skimask, gloves and ammunition. Several coins had fallen from the car as well.

20

Lucy Krigger, the police dispatcher, testified that Charles gave the police thelicense plate number of the car the robbers were driving. As noted, Koch, theFBI witness, testified that a hair sample taken from Haywood matched the hairfound in the ski mask.4

21

Given this testimony as well as the testimony about the shot gun that wasrecovered, it is disingenuous to claim that the evidence was insufficient toconvict Haywood of robbing the bar.

22

B. Possession of a Firearm with an Obliterated Serial Number.

23

Haywood was also convicted of Count Five, possession of a firearm with an

obliterated serial number. Title 18 U.S.C. 922(k) provides:

24

It shall be unlawful for any person knowingly to transport, ship, or receive, in

interstate or foreign commerce, any firearm which has had the importer's ormanufacturer's serial number removed, obliterated, or altered or to possess orreceive any firearm which has had the importer's or manufacturer's serialnumber removed, obliterated, or altered and has, at any time, been shipped ortransported in interstate or foreign commerce.

25

The district court instructed the jury on the 922(k) charge as follows:

26

First, that on the same day, December 28 of last year, here in St. Thomas, IraHaywood knowingly possessed a firearm, that is, a .380 Davis Industries pistol,which firearm at some point in time had been transported in interstatecommerce, and from which the manufacturer's serial number had been removedand obliterated.

27

App. 506-07. Haywood argues that the district court's instruction was erroneousbecause it did not require the government to prove beyond a reasonable doubtthat Haywood knew that the serial number on the pistol had been obliteratedwhen he possessed it.

28

Title 18 U.S.C. 924(a)(1)(B) governs the penalty provisions for violations of

922. "In 1986 Congress enacted the Firearms Owners' Protection Act, whichmodified the penalty provisions of 18 U.S.C. 924.... Where the preexistingstatute had provided criminal penalties for `[w]hoever violates any provision ofthis chapter,' ... the amended version, insofar as here relevant, imposes criminalpenalties on `whoever knowingly violates subsection... (k) ... of section 922.'"United States v. Haynes, 16 F.3d 29, 33-4 (2d Cir.1994) (citations omitted)(emphasis in original). The courts of appeals that have considered the issueafter this amendment became effective have all held that a 922(k) convictionnow requires not only knowing possession of the firearm, but also knowledgethat the serial number on the firearm had been obliterated. See United States v.Abernathy, 83 F.3d 17, 19 n. 1 (1st Cir.1996); United States v. Fennell, 53 F.3d

1296, 1300-01 (D.C.Cir.1995); United States v. Haynes, 16 F.3d at 34; United

States v. Hooker, 997 F.2d 67, 72-74 (5th Cir.1993). Thus, pursuant to theamendment, knowledge that the serial number is obliterated at the time ofpossession is an element of the offense of a 922(k) violation. We thereforehold that the time of the weapon's possession is an element of a violation of 922(k). Accordingly, the district court's instruction was erroneous.29

However, Haywood's trial counsel did not object to the instruction, andtherefore Haywood must establish plain error.5 United States v. Olano, 507U.S. 725, 734-735, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). "Under [the plainerror] test, before an appellate court can correct an error not raised at trial, theremust be (1) error, (2) that is plain, and (3) that affects substantial rights. If allthree conditions are met, an appellate court may then exercise its discretion tonotice a forfeited error, but only if (4) the error seriously affects the fairness,integrity, or public reputation of judicial proceedings." Johnson v. UnitedStates, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citations,internal quotations and brackets omitted). In the case of an erroneous juryinstruction, "the relevant inquiry ... is whether, in light of the evidencepresented at trial, the failure to instruct had a prejudicial impact on the jury'sdeliberations, so that it produced a miscarriage of justice." United States v.Xavier, 2 F.3d 1281, 1287 (3d Cir.1993) (citations and internal quotationsomitted). "In other words, did the error seriously affect the fairness, integrity orpublic reputation of judicial proceedings?" Id. (citation, internal quotations andbrackets omitted). Although we have not adopted a per se rule, we have heldthat "the omission of an essential element of an offense [in a jury instruction]ordinarily constitutes plain error." Id. (citation omitted) (emphasis in original)."[This] is consistent with the Supreme Court's instruction that due processrequires `proof beyond a reasonable doubt of every fact necessary to constitutethe crime with which [the defendant] is charged.'" Id. (quoting In re Winship,397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)).

30

Here, the district court's failure to instruct the jury that knowledge of theobliterated serial number is an element of the crime undoubtedly had an effecton the jury's deliberations. "[T]he jury could not have been expected to make afinding beyond a reasonable doubt as to [Haywood's knowledge of theobliterated serial number] in the absence of an instruction to do so." Xavier, 2F.3d at 1287. Therefore, the inquiry becomes whether the failure to instructwas prejudicial, i.e., did the failure to instruct on knowledge affect Haywood'sdue process rights in a manner that "`seriously affect[ed] the fairness, integrityor public reputation of judicial proceedings.'" Id. (quoting Olano, 507 U.S. at736, 113 S.Ct. 1770).

31

We believe it did. The government argues that because Haywood possessed thepistol, hid it on his person and used it in a robbery, the jury could reasonablyinfer that Haywood would have examined the pistol at some point before therobbery to see if it worked. In addition, the government notes that at some pointafter the robbery, Haywood disassembled the pistol. Therefore, given theseconsiderations, the jury could have reasonably inferred that Haywooddiscovered that the pistol's serial number had been obliterated. That is true. Thejury could have found beyond a reasonable doubt that Haywood knew the gunhad an obliterated serial number had it been instructed of the need to do sounder 922(k). However, no such instruction was given and the government'sargument about the jurors' thought process therefore rests upon purespeculation. Haywood has a due process right to "proof beyond a reasonabledoubt of every fact necessary to constitute the crime with which [he] ischarged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368(1970). Speculation about what the jury could have done if properly instructedfalls woefully short of that burden.

32

Accordingly, we find that the district court's failure to instruct the jury on theelement of knowledge of the obliterated serial number amounted to plain error.Therefore, we will reverse the conviction on Count Five and remand for a newtrial.

33

C. Possession of a Firearm in a School Zone.

34

Haywood was also convicted on Count Seven possession of a firearm within

1000 feet of a school zone. That statute provides:

35

It shall be unlawful for any individual knowingly to possess a firearm that hasmoved in or that otherwise affects interstate or foreign commerce at a place thatthe individual knows, or has reasonable cause to believe, is a school zone.

36

18 U.S.C. 922(q)(2)(A). A "school means a school which provides

elementary or secondary education, as determined under State law." 18 U.S.C. 921(a)(26). "[S]chool zone" is defined to mean: "in, or on the grounds of, apublic, parochial or private school" or "within a distance of 1,000 feet from thegrounds of a public, parochial or private school." 18 U.S.C. 921(a)(25)(A),(B).

37

Haywood argues that the government failed to prove that he knew or had reasonto believe that he possessed a firearm in a school zone as required under thestatute. We agree.

38

As noted earlier, Detective Tyson testified that he measured the distance fromAmerica's Bar and Poolroom to the Ulla Muller Elementary School to be 421feet, 4 inches. Tyson also testified that the measurement was taken from the barto the school's entrance gate. However, the location of the bar in relation to theschool is not clear from the evidence. There is nothing to show whether theyshare the same frontage or are around the corner from each other or whether allapproaches to the "school zone" are clearly marked. Therefore, the evidence didnot establish whether Haywood necessarily would have seen the school on theway to or from the bar. Tyson testified on cross-examination as follows:

39

Q: The device you used to measure the distance to the school, is that a line ofsight device measurement?

40

A: No. The measurement, I explained it already,6 the measurements were taken,

the wheel that is attached, affixed to the stick, there's a little box in the top, andas you push the wheel it rolls the numbers around. So it gives you, as the wheelis rolling, it measures the distance as it goes from one point to the other.

41

Q: Okay. So, to take the measurement, did you walk around, from America'sBar around the corner all the way round to Ulla Muller School?

42

A: It was measured from the building into the entrance of the school, justwithin the gates.

43

THE COURT: Is that line of sight? Can you see straight?

44

THE WITNESS: Yes, you can. You can.

BY [Defense Counsel]:

45

Q: So you went in a straight line. Was that on a road or did you have to gothrough bush?

46

A: That would be on the road.

47

App. at 304-05 (emphasis added).

48

However, the government did not produce any evidence of any school zonesigns or similar identification that would support the inference that Haywoodshould have known that a school was within 1000 feet of the bar. Nor did the

government produce any evidence that Haywood had to pass by the school toget to or from the bar.49

Indeed, the only evidence offered by the government in its attempt to prove thatHaywood should have known that the school was within 1000 feet of the bar isthe following excerpt from his cross-examination testimony:

50

Q: But you know where America's Bar is, right?

51

A: Yes, Sir.

52

Q: You know where it is?

53

A: Where it is?

54

Q: Yeah.

55

A: It's by, across the street from Nisky Center. It have a big sign sayingAmerica's Bar.

56

Q: And you know it well, right?

57

A: No. I don't live down on that side. I live in Tutu.

58

Q: You live in Tutu, but you know where America's Bar is, you said?

59

A: Yes, sir. St. Thomas is very small.

60

Q: And you know how to get to America's Bar?

61

A: Yes, sir.

62

Q: And you know how to get from America's Bar?

63

A: Yes, sir.

64

Q: You know where the Towers are?

65

A: Yes, sir.

65

A: Yes, sir.

66

Q: You know how to get there?

67

A: Yes, sir.

68

App. at 360-61. Based on this cross-examination testimony, the government

contends that the "jury could have drawn the reasonable inference that, since[Haywood] knew the surrounding area of America's Bar he knew or shouldhave known the Ulla Muller Elementary School was within 1000 feet of thebar." Government's Br. at 26. However, we think it shows the opposite.Haywood testified that he did not know the area well because he lived in adifferent part of St. Thomas, and the trial testimony can not be fairly interpretedas establishing that he knew the area well; only that he knew how to get there.Consequently, only rank conjecture supports a conclusion that Haywood knewor should have known that the bar was within 1000 feet of the school. This isparticularly true because the government never even tried to establish whetherall approaches to the bar necessarily pass the school or whether the area ismarked as a "school zone."

69

In truth, the only evidence that the government produced to support thisconviction is that the school is, in fact, within 500 feet of the bar. However,that is not sufficiently conclusive to enable a reasonable juror to draw theinference that Haywood knew or should have known of that proximity.Accordingly, there is insufficient evidence to support the conviction on CountSeven. Therefore, we will vacate the conviction and remand with directions toenter a judgment of acquittal on that Count.

70

D. Interference with Commerce by Robbery.

18 U.S.C. 1951 (Count One) provides:

71

Whoever in any way or degree obstructs, delays, or affects commerce or the

movement of any article or commodity in commerce, by robbery or extortion orattempts or conspires so to do, or commits or threatens physical violence to anyperson or property in furtherance of a plan or purpose to do anything inviolation of this section shall be fined under this title or imprisoned not morethan twenty years, or both.

72

18 U.S.C. 1951. To sustain a conviction for interference with commerce by

robbery under 1951, the government must prove the element of interference

with interstate or foreign commerce by robbery. See Stirone v. United States,

361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). "The charge thatinterstate commerce is affected is critical since the Federal Government'sjurisdiction of this crime rests only on that interference." Id. However, "[i]f thedefendants' conduct produces any interference with or effect upon interstatecommerce, whether slight, subtle or even potential, it is sufficient to uphold aprosecution under [ 1951]." Jund v. Town of Hempstead, 941 F.2d 1271, 1285(2d Cir.1991). Moreover, "[a] jury may infer that interstate commerce wasaffected to some minimal degree from a showing that the business assets weredepleted." United States v. Zeigler, 19 F.3d 486, 493 (10th Cir.1994).73

The district court's jury instruction on the interference with commerce by

robbery charge provided that

74

if the government proves beyond a reasonable doubt that this business

purchased goods or services that came from outside St. Thomas, Virgin Islands,and that, therefore, all or part of the personal property obtained from thisbusiness, because of the alleged robbery, came from outside St. Thomas, VirginIslands, then you are instructed that you may find that the defendants obtained,delayed or affected commerce as this term is used in these instructions.

75

App. 499. Haywood argues that the government did not produce sufficientevidence to show that the bar purchased goods or services from outside theVirgin Islands

76

However, Detective Foy testified that America's Bar is a business established in

the Virgin Islands and that some products sold at the bar, specifically,Heineken beer and Miller beer, come from the mainland United States.However, Haywood still contends that Detective Foy's testimony is notsufficient to show that the bar purchased Heineken and Miller beer that camefrom outside the Virgin Islands. The linchpin of Haywood's argument is hisclaim that Foy did not provide a foundation for his knowledge regarding thesource of the Heineken and Miller beer sold at the bar. Therefore, the jury didnot know if Foy's testimony about the Heineken and Miller beer was based oninformation Foy received from Santiago, the bar's owner, or if Foy had himselfbeen to the bar at an earlier time and knew that the products came from themainland, or if Foy just assumed that the products came from the mainland.Haywood contends that, at a minimum, there must be some independentevidence, such as a purchasing invoice or the testimony of Santiago as to whereshe purchased the Heineken and Miller beer in order to show interference withinterstate commerce.

77

We disagree. In United States v. Lake, 150 F.3d 269 (3d Cir.1998), a carjackingcase, we held that a Virgin Islands' police officer's testimony was sufficient toestablish that the car in question had been transported in interstate or foreigncommerce. In Lake, the police officer, a life-long resident of the Virgin Islands,testified that "no motor vehicles are manufactured in the Virgin Islands and thatall motor vehicles have to be shipped to the islands." Id. at 273. Lake argued onappeal that the police officer's testimony based on his long time residence wasnot sufficient to establish the required commerce element of the federalcarjacking statute, and that there was no foundation for his testimony.However, we rejected that argument. We took judicial notice of the small sizeof the Virgin Islands, and held that a "police officer and lifelong resident of aplace of this type has a sufficient basis to testify as to whether any motorvehicle manufacturing facilities are located there." Id.

78

Here, Officer Foy testified that he was assigned to the Safe Streets Task Forceand that he investigates violent federal crimes as a police officer in that TaskForce. Officer Foy also testified that he was familiar with America's Bar. Webelieve that this record is sufficient to establish that Officer Foy would haveknown of any Heineken or Miller breweries in the Virgin Islands.Consequently, the evidence was sufficient to prove the Heineken and Millerbeer sold at America's Bar came to the Virgin Islands from the mainlandUnited States or otherwise traveled in interstate or foreign commerce.7Accordingly, we will affirm Haywood's conviction on Count One.

79

E. Possession of a Firearm During a Crime of Violence.

80

In Count Two Haywood was convicted of possession of a firearm during a

crime of violence. The relevant statute provides:

81

[A]ny person who, during and in relation to any crime of violence or drugtrafficking crime (including a crime of violence or drug trafficking crime thatprovides for an enhanced punishment if committed by the use of a deadly ordangerous weapon or device) for which the person may be prosecuted in acourt of the United States, uses or carries a firearm, or who, in furtherance ofany such crime, possesses a firearm, shall, in addition to the punishmentprovided for such crime of violence or drug trafficking crime be sentenced to aterm of imprisonment of not less than 5 years....

82

18 U.S.C. 924(1). He argues here that because his 1951 interference withcommerce by robbery conviction must be reversed, his 924(c) possession of afirearm during a crime of violence must also be reversed. He reaches this

conclusion because he claims that the interference with commerce by robbery

conviction is the predicate offense for a conviction under 924(c). However,this argument is without merit because he was properly convicted under 1951.Moreover, a conviction under 924(c) does not require a conviction on thecrime of violence as a predicate offense. United States v. Lake, 150 F.3d at 275.A valid 924(c) conviction "requires only that the defendant have committed aviolent crime for which he may be prosecuted in federal court. It does not evenrequire that the crime be charged; a fortiori, it does not require that he beconvicted." United States v. Smith, 182 F.3d 452, 457 (6th Cir.1999) (emphasisin original).83

F. Lost or Destroyed Evidence.

84

Haywood claims that the district court erred by not dismissing the supersedingindictment against him because the government either lost or destroyed theclothing he was wearing on the night of the robbery.8

85

In California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 81 L.Ed.2d 413(1984), the Court noted that "[w]hatever duty the Constitution imposes on theStates to preserve evidence, that duty must be limited to evidence that might beexpected to play a significant role in the suspect's defense." In order "[t]o meetthis standard of constitutional materiality, evidence must both possess anexculpatory value that was apparent before the evidence was destroyed, and beof such a nature that the defendant would be unable to obtain comparableevidence by other reasonably available means." Id. at 489, 104 S.Ct. 2528.

86

Haywood submits that the lost or destroyed clothing meets the standard forconstitutional materiality because his case centered on identification. Thus, thecolor and type of clothing he wore at the time he was arrested was relevant toboth the government and the defense as proof of identity. He claims thatCharles's identification of him is based on a white T-shirt that Charles said hewas wearing. Haywood alleges there was no overwhelming evidence that hewas wearing a white T-shirt because Charles was the only person who testifiedthat he was wearing a white T-shirt. Haywood claims that he was wearingdifferent clothing. Moreover, he notes that neither Santiago nor Rodriqueztestified that he was wearing a white T-shirt. Therefore, he submits that if hehad been able to introduce the T-Shirt, it would have been of significant valuein rebutting Charles's testimony.9 Consequently, he argues the unavailability ofthe clothing severely prejudiced his ability to mount a defense.

87

We do not see any merit in this argument. Haywood understandably forgets that

he was photographed by the police wearing a white T-shirt during processing

following his arrest. That photograph was admitted as an exhibit at trial, butHaywood does not bother to mention it now. He also does not argue that theadmission of the photograph was error. We fail to understand why it makes adifference whether the actual white T-shirt was introduced into evidence orwhether a photograph of Haywood wearing the white T-shirt was introducedinto evidence. Consequently, we hold that the district court did not err by notdismissing the superseding indictment against him based on this due processclaim.88

G. Problems with the Interpreter.

89

Haywood's challenge to the translation of testimony is equally frivolous. At

trial, both Santiago and Rodriquez testified with the aid of a Spanishinterpreter. Haywood argues that his convictions must be reversed because of anumber of problems with the interpreter, which he claims violated his FifthAmendment due process right and his Sixth Amendment confrontation right.He first argues that there is no evidence in the record that the interpreter wascertified to translate in federal court, as required by 28 U.S.C. 1827, orotherwise determined to be qualified or competent under 28 U.S.C. 1827(d).However, Haywood did not object to the district court's decision to use theinterpreter nor did he raise any issue concerning the interpreter's certification orqualifications in the district court. Accordingly, he has waived this issue.United States v. Hsu, 155 F.3d 189, 205 (3d Cir.1998) (citing Harris v. City ofPhiladelphia, 35 F.3d 840, 845 (3d Cir.1994)).

90

Haywood's second argument is that the interpreter improperly summarized the

testimony of Santiago and Rodriquez. However, he fails to tell us whattestimony the interpreter summarized or why the alleged summary wasimproper.

91

His third argument is only slightly less fanciful than the prior two. He claimsthat the interpreter consistently translated testimony in the third person.According to Haywood, translation in the third person resulted in confusionbecause the translator's use of the pronouns "she" and "her" referred not only toSantiago and Rodriquez, but also to other female witnesses. In support of hisargument he cites to United States v. Gomez, 908 F.2d 809 (11th Cir.1990). InGomez, the interpreter improperly equated "disco" with "Elks Lodge," therebycorroborating a prior witness's testimony that was favorable to the government.Here, however, there is no claim that the interpretation in the third personcorroborated any other testimony, and Haywood fails to provide any concreteexamples of confusion. Therefore, Gomez does not help. Accordingly, we do

not find any due process violation involving the use of the interpreter.III. CONCLUSION92

For all of the above reasons, we will affirm the convictions on Counts One,Two and Four; vacate the conviction on Count Five and remand for a new trial;and vacate the conviction on Count Seven and remand with directions to enter ajudgment of acquittal.

Notes:1

Santiago also testified that she sold liquor, Heineken beer and Coors Light beerat the bar. As we will discuss below, this is important for purposes of federaljurisdiction

White also filed an appeal. We affirmed his judgment of conviction and

sentence on June 14, 2002

"In reviewing a jury verdict for sufficiency of the evidence, we must considerthe evidence in the light most favorable to the government and affirm thejudgment if there is substantial evidence from which a rational trier of factcould find guilt beyond a reasonable doubt."United States v. Brown, 3 F.3d673, 680 (3d Cir.1993) (citation and internal quotations omitted). "Indetermining whether evidence is sufficient, we will not weigh the evidence ordetermine the credibility of witnesses.... Appellate reversal on the grounds ofinsufficient evidence should be confined to those cases where the failure of theprosecutor is clear. The evidence need not be inconsistent with everyconclusion save that of guilt, so long as it establishes a case from which a jurycould find the defendant guilty beyond a reasonable doubt.... A defendantchallenging the sufficiency of the evidence bears a heavy burden." UnitedStates v. Casper, 956 F.2d 416, 421 (3d Cir.1992) (citations omitted).

The jury could certainly conclude that, given the climate and the amount ofsnow that falls in St. Thomas, Haywood did not have a ski mask because hewas on his way to or from the slopes

Had Haywood objected to the instruction, this issue would be subjected to a

On direct examination, Officer Tyson testified that he used measuring

equipment known as a "Monson Company, Model 1212," and said "[i]t's like a

long piece of stick with a wheel attached to the end that the traffic officers usewhen they're taking measurements in traffic accidents." App. at 303-3047

Haywood also argues that there is no evidence to support the exercise of federaljurisdiction over what is really a territorial crime. In support of that argument,he cites toUnited States v. McGuire, 178 F.3d 203 (3d Cir. 1999). There,McGuire was convicted of arson of property used in an activity affectinginterstate commerce. McGuire put a pipe bomb in his mother's car that wasused in a local catering business. The government attempted to establish thefederal jurisdictional element by relying on a bottle of orange juice that was inthe trunk of the car. However, we held that the bottle of orange juice was tooinconsequential to support the exercise of federal jurisdiction. Id. at 210-212.However, McGuire does not help Haywood. The federal jurisdictional elementin 1951 is that interstate commerce is affected. Stirone, 361 U.S. at 218, 80S.Ct. 270. Here, it is clear that interstate commerce was affected, howeverminimally, because the bar sold Heineken and Miller beer that came fromoutside the Virgin Islands. Moreover, the bar's assets were depleted becausemoney was stolen during the robbery. That is far more consequential than onebottle of orange juice.

The government claims that it neither lost nor destroyed the clothing Haywoodwas wearing on the night of the robbery. It notes that Detective Monosontestified on cross-examination that the clothing had been left in a recentlycondemned police station and that he was unable to enter the building to searchfor the clothing because of the condemnation

Haywood suggests bad faith on the government's part because the police did notfollow standard procedure in preserving the clothing he wore. However, hedoes not say what standard procedure the police did not follow. InUnited Statesv. Deaner, 1 F.3d 192 (3d Cir.1993), we wrote: "A defendant who claimsdestroyed evidence might have proved exculpatory if it could have beensubjected to tests has to show the prosecution's bad faith in ordering orpermitting its destruction. Without a showing of bad faith, failure to preserveevidence that might be of use to a criminal defendant after testing is not a denialof due process." Id. at 200 (citations omitted). Here, there is absolutely noevidence that Haywood's clothing was purposefully lost or destroyed.